Court Rules with Defense on Access to Classified Material in the Case of Dr. Ali Al-Timimi

Due to the classified status of the case, I have been limited in what I can report about the progress in the case of Dr. Ali Al-Timimi. However, today’s hearing was public and thus some additional information can be disclosed.

Today was a very positive day for the defense. We have been trying for two years (since a remand from the Fourth Circuit) to gain access to material that we believe was withheld by the government during the trial. This material includes interceptions and other forms of evidence conducted under national security programs. In November, Judge Leonie Brinkema threatened to order a new trial for Dr. Al-Timimi in light of the government’s refusal to give me, as lead counsel, access to ex parte material.
Today, the government sought to end the case after completing its own review of material — without giving the defense (which includes Will Olson from Bryan Cave) access to any of the material. We filed papers seeking such access. Judge Brinkema refused and ruled with the defense that access must be given. She further threatened again that she is considering a new trial unless things change.

Notably, Judge Brinkema confirmed that the government had used classification to hide purely legal argument — an abuse of such rules. She noted that much of the ex parte filing is composed of legal argument without any possible claim that it is classified. That would be a flagrant abuse of ex parte rules and it is precisely what the defense has warned about: the use of these filings to avoid the adversarial process. She noted that I have a clearance and should be able to see the material.

She ordered a conference with the government and the security officer to arrange for such a disclosure. She, however, declined our request that Will Olson be given access with me due to the government’s concerns over the sensitivity of the material and limiting those with access to the fewest possible individuals.

We are deeply grateful for Judge Brinkema’s continued demand for access in the case. We remain convinced that the government has material that should have been disclosed at trial. We remain committed to Dr. Al-Timimi’s efforts to receive a new and fair trial.

We will continue to update this blog as public information becomes available.